Asian Paradigm Theory and Access to Justice
| DOI | 10.1177/1043986216656681 |
| Author | Jianhong Liu |
| Date | 01 August 2016 |
| Published date | 01 August 2016 |
| Subject Matter | Articles |
research-article2016
Article
Journal of Contemporary Criminal Justice
2016, Vol. 32(3) 205 –224
Asian Paradigm Theory and
© The Author(s) 2016
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DOI: 10.1177/1043986216656681
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Jianhong Liu1
Abstract
Asian Paradigm Theory states that there is a significant difference between the
Western and Asian concept of justice, produced by differences in social organization
and cultural traditions. On one hand, Asians tend to stress three important cultural
values: attachment, honor, and harmony. At the other end, Western society tends
to stress independence, materialistic success, and individual rights. Asian participants
tend to use a “holistic thinking mode,” while Western counterparts tend to use an
“analytical thinking mode.” The theory states that the differences in cultural values and
thinking modes produce differences in the concept of crime and justice. Asians tend
to conceive the concept of crime and justice as relational concepts, and Westerners
tend to conceive the concept of crime and justice as individualistic concepts. This
article uses Asian Paradigm Theory to explore approaches to the issue of access to
justice, which suggest that the Asian concept of justice and practice may offer a more
suitable approach to access to justice under the context of Asian societies.
Keywords
Asia, comparative criminal justice, theory, restorative justice, collectivism
Introduction
Equal justice is an essential issue for achieving justice. In conventional usage, “Equal
justice” typically means “equal access to justice.” Equality in access to justice itself is
part of what we mean by “justice.” Without properly addressing the issue of a “justice
gap,” there will not be “justice for all.”
1University of Macau, Taipa, China
Corresponding Author:
Jianhong Liu, Department of Sociology, University of Macau, Room 3002, Social Science Building
E21, Avenida da Universidade, Taipa, Macau, China.
Email: jliu@umac.mo
206
Journal of Contemporary Criminal Justice 32(3)
There are many criteria for equal justice, but a major issue is that access to justice
should not depend on the ability to pay. However, the reality is that economic resources
are the primary obstacle for access to justice, which I will demonstrate in this article.
The issue of access to justice has become a central topic in recent academic research
and public policy debates. A World Justice Project (2011) survey indicates that access
to justice is a serious issue around the world. Former U.S. President Jimmy Carter
criticized, “Ninety percent of our lawyers serve ten percent of our people,” and the
United States supplies only about one lawyer for every 1,400 poor or near-poor per-
sons in the United States (Rhode, 2004). Earlier research reported that in the United
States, 80% of the legal needs of the poor and two thirds of the legal needs of middle-
income Americans are not met. Millions of Americans lack any access to the justice
system, let alone equal access (Rhode, 2004; Rhode & Packel, 2011).
Another issue is “access to what.” It is difficult for everyone to have access to a
formal justice system, or legal assistance such as lawyer support, especially for the
poor and residents of undeveloped countries. It is important to explore easier and
affordable means for more people to have their problems settled in a just and equitable
manner. In my Asian Paradigm Theory, which is reviewed in later sections in this
article, I explain the essential differences between the Western and Asian concepts of
justice. Asia is different from Western society in many aspects, and there exist many
traditions and practices in Asian countries, especially restorative justice practices, that
can be learned from in solving the problem of access to justice. In this article, we
address several related questions: What are the primary obstacles to solving the prob-
lem of unequal access to justice? What are the contemporary solutions? Can solutions
adopted in Western countries be adapted to Asian contexts? What insights can Asian
countries contribute into the research literature and policy debates focused on solving
this problem? What are some of the possible directions Asian countries can consider
in moving toward more equal access to justice?
Despite the importance of this topic, systematic research on access to justice in Asia
has been lacking. This article will explore answers to these questions and review the
implications of the Asian Paradigm for access to justice in Asia, a conceptual frame-
work that summarizes the major themes and features of crime control and justice in
Asian cultures, which has implications for a broad range of issues related to crime
control and justice.
Difficulties and Solutions
There are many obstacles in accessing justice. For example, some people cannot get
access to justice due to physical and mental disability or cultural and linguistic differ-
ences. However, the primary and most common obstacle is still cost. Martin (2012)
reviewed the major difficulties for access to justice and pointed out that the major issues
preventing equal access to justice are the triumvirate of evil—cost, delay, and complexity,
among which he believes cost is the most important. Access to justice has been a topic of
discussion since the early 20th century, and in many studies, unequal access is considered
a social problem faced by lower status groups, especially the poor (Sandefur, 2009).
Liu
207
The most common reason a person in need of legal services chooses not to utilize
such services is that the expense is too costly to afford. Thus, the primary assistance
provided for the poor and marginalized is to provide them with legal aid. Every coun-
try has this issue, including the United States. Research reported that the United States
has only about one legal aid lawyer or public defender for every 4,300 persons below
the poverty line, compared with a ratio of one lawyer for every 380 Americans in the
population generally (Rhode, 2004). So as we can see, the primary issue for access to
justice is financial resources. A most influential research project is the World Justice
Project. It created a Rule of Law Index. The project provides much useful macro data
on justice. Figure 1 below adapts some of the macro data, which show that the primary
obstacle for access to justice is financial resources. I use these data to examine the
relationship between access to justice and per capita gross domestic product (GDP)
based on data for 66 countries from 2011. Measures of access to justice are based on
the World Justice Project Rule of Law Index, while per capita GDP is based on United
Nations Reports. Figure 1 shows access to justice is significantly correlated to GDP
Per Capita. Figure 2 shows Due Process of Law in Criminal Justice System is signifi-
cantly correlated to GDP Per Capita. These figures using macro data suggest that a
primary obstacle for access to justice is insufficient financial resources.
Western literature has discussed three primary solutions to improve access to jus-
tice. Generally, three solutions have been adopted. One, access to lawyers. This solu-
tion is primarily realized in the form of legal aid. Two, access to judges. This solution
is primarily realized in terms of improved procedure. Three, access to legal informa-
tion. This solution has taken many different forms. The cost efficiency of each of these
three different solutions has been compared in the literature (Martin, 2012; Rhode,
2004; Rhode & Packel, 2011). The fundamental difficulty, on the whole, remains
insufficient financial resources to meet the high legal needs of the poor. The most sug-
gested solution is to increase funding for legal aid. Professional organizations in the
legal field (the Bar) tend to support the legal aid solution. To address the issue of
access to justice in Asia, we are concerned with the implications of contemporary solu-
tions for Asia. This leads us to examine the major characteristics of Asian societies.
Asia is the largest and most populous continent, comprising almost 30% of the
Earth’s land area and roughly 60% of its human population. Asian countries are
generally characterized as underdeveloped, and many have large populations and
accordingly low economic resources per capita. According to a country-breakdown
of World Bank data on GDP per capita, most Asian countries are below the world
average level of GDP per capita, especially the two most populous countries, China
and India. Accordingly, governments generally have fewer financial resources avail-
able for legal aid.
Although recent years show great progress in economic growth and social develop-
ment in Asian countries, there still exists a large gap when compared with their Western
counterparts. In Asian countries, school enrollment rates and levels of education have
increased: In the past few decades, literacy rates have grown to 87%, and gross sec-
ondary and tertiary enrollment rates have risen to 81% and 27%, respectively.
Nonetheless, according to the Asia Development Bank’s 2015 report, average years of
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Journal of Contemporary Criminal Justice 32(3)
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